Opinion
A151545
06-22-2018
TIMOTHY DEWITT Plaintiff and Appellant, v. HSBC BANK USA, N.A., Defendant and Respondent
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. CGC-12-520809)
INTRODUCTION
Plaintiff Timothy DeWitt, an attorney acting in propria persona, sued several defendants, including defendant HSBC Bank USA, N.A. (Bank) for violating the California Anti-Spam Act (Bus. & Prof. Code, §17529.5). During the course of the suit, the trial court granted a motion to compel further responses and granted monetary discovery sanctions of $5,510 in favor of the Bank. DeWitt appeals from the order granting the motion to compel and from the discovery sanctions order. Only the latter order is appealable. (Code Civ. Proc., § 904.1, subd. (a)(12) [authorizing appeal of monetary sanctions exceeding $5,000]; Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1432 ["There is no statutory provision for appeal from an order compelling compliance with a discovery order."].)
All statutory references are to the Code of Civil Procedure, unless otherwise indicated. References to rules are to the California Rules of Court, unless otherwise indicated.
DeWitt does not challenge the propriety of the grant of the motion to compel and does not argue his conduct did not warrant sanctioning. Rather, he contends: (1) the imposition of attorney fees as discovery sanctions on self-represented litigants denies such litigants due process and equal protection under the federal and state Constitution; (2) the participation of a temporary judge on discovery law and motion matters before obtaining consent of the litigants and over litigants' objections violates rule 2.816 and requires reversal here, despite the trial court's statement that it did not consider the tentative decision of the temporary judge. We shall affirm the challenged orders.
The parties are familiar with the facts and we shall reiterate them here only where necessary to an understanding of the issues presented.
I.
DeWitt contends the statutory scheme imposing mandatory discovery sanctions, including attorney fees (§ 2030.300, subd. (d)), and case law refusing to allow self-represented litigants to recover attorney fees as discovery sanctions (e.g., Kravitz v. Superior Court (2001) 91 Cal.App.4th 1015 (Kravitz)), results in "asymmetrical one-way attorney fee shifting as monetary sanctions" against self-represented litigants and denies them due process and equal protection under the state and federal Constitutions.
Section 2030.300, subdivision (d) provides: "The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." (§ 2030.300, subd. (d).)
When the court grants a motion to compel, it "shall" order the party to whom the discovery was directed to pay the propounding party's reasonable expenses, including attorney's fees, "unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." (§ 2023.030, subd. (a); see Weil & Brown, Cal. Practice Guide, Civil Procedure Before Trial (The Rutter Group) ¶ 8:1921.) However, "Lawyers or other self-represented litigants (appearing on their own behalf) cannot recover attorney fees as discovery sanctions. [Citations.] But such litigants can recover reasonably identifiable expenses incurred (e.g., computer-assisted legal research, photocopying, or transportation to and from court) even if those costs would ordinarily be included in the lawyer's hourly rate. [Citation.]" (Id., ¶ 8:1929, citing Kravitz, supra, 91 Cal.App.4th 1015, 1021.)
"The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." (§ 2023.030, subd. (a).)
Kravitz recognized that the rules governing monetary sanctions were "inconsistent." From these rules it distilled the foregoing admittedly "inadequate solution for all pro se litigants-including pro se lawyers-who have prevailed on motions to compel . . . ." (Kravitz, supra, 91 Cal.App.4th at pp. 1016-1017.)
Kravitz summarized these rules up to that point: "Under the Civil Discovery Act of 1986, the trial court must impose monetary sanctions against anyone engaging in conduct that is a misuse of the discovery process, and must order the abuser to pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. Under Trope v. Katz (1995) 11 Cal.4th 274, 277, a pro se lawyer cannot recover attorney's fees under Civil Code section 1717. Under Abandonato v. Coldren (1995) 41 Cal.App.4th 264, 268, a pro se lawyer can be awarded attorney's fees as sanctions under Code of Civil Procedure section 128.5. Under Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1175, a pro se lawyer cannot be awarded attorney's fees as a discovery sanction." (Kravitz, supra, 91 Cal.App.4th at p. 1016.) We add that lawyers representing clients pro bono may obtain discovery sanctions measured by the reasonable value of their services. (Do v. Superior Court (2003) 109 Cal.App.4th 1210, 1218.) We also note that in Musaelian v. Adams (2009) 45 Cal.4th 512, 520, the California Supreme Court held "an attorney who responds in pro se to a filing abuse may not recover sanctions under section 128.7 in the form of an award of attorney fees, disapproving Abandonato.
DeWitt contends the foregoing denial of attorney fees as discovery sanctions to self-represented litigants constitutes a violation of due process and equal protection. We disagree.
The rule allows all parties, including self-represented parties, to recover their out-of-pocket costs. If DeWitt were the victim of discovery abuse instead of the perpetrator, he would be entitled to recover some of his out-of-pocket costs. By definition, self-represented litigants, such as he, have incurred no attorney fees and, therefore, are not similarly situated to litigants represented by attorneys, with respect to the attorney fees aspect of monetary damages that the discovery sanction is meant to remedy. As he has not incurred attorney fees, the asymmetry of which he complains does not exist. Self-represented litigants are entitled to monetary discovery sanctions to recover damages they do incur in the form of costs, even where "those costs are ones that lawyers ordinarily include in their hourly rates or other fee structures. [Citations.]" (Kravitz, supra, 91 Cal.App.4th at p. 1020.)
DeWitt fails to provide any support for his assertion that these discovery sanctions rules affect self-represented litigants' access to the courts. We note that sanctions may not be imposed where the court finds the party "acted with substantial justification" or where "other circumstances make the imposition of the sanction unjust." (§§ 2023.030, subd. (a); see 2023.010, subd. (h); 2030.300, subd. (d); 2031.310, subd. (h).)
Finally, the two cases cited by DeWitt in support of his constitutional arguments are inapposite and he does not explain how either case advances his argument.
Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, held that an employee who had timely filed a charge of unlawful termination with the Illinois Fair Employment Practices Commission had a property right, protected by due process, to use the FEPA's adjudicatory procedures. Therefore, his charge could not be dismissed due to the commission's failure to hold a timely conference on the claim. (Logan, at p. 433.) DeWitt does not allege any loss of a property right through no fault of his own, as did the appellant in Logan. Nor was he denied access to legal or administrative process by the imposition of discovery sanctions.
Lindsey v. Normet (1972) 405 U.S. 56, held tenants right to equal protection of the laws was violated by the "double-bond" prerequisite for appealing under the Oregan Forcible Entry and Wrongful Detainer Statute (FED). Unlike other Oregon civil case appellants, those appealing an FED action were required to "give 'in addition to the undertaking now required by law upon appeal,' an undertaking with two sureties for the payment of twice the rental value of the premises 'from the commencement of the action in which the judgment was rendered until final judgment in the action.' [Citation.] In the event the judgment is affirmed, the landlord is automatically entitled to twice the rents accruing during the appeal without proof of actual damage in that amount. [Citation.]" (Lindsey, at pp. 75-76.) The court held "the double-bond requirement heavily burdens the statutory right of an FED defendant to appeal. While a State may properly take steps to insure that an appellant post adequate security before an appeal to preserve the property at issue, to guard a damage award already made, or to insure a landlord against loss of rent if the tenant remains in possession, the double-bond requirement here does not effectuate these purposes since it is unrelated to actual rent accrued or to specific damage sustained by the landlord." (Id. at p. 77.) DeWitt has failed to explain how the refusal to award attorney fees as a discovery sanction to self-represented litigants "heavily burdens" the right of those litigants or hampers their access to the courts. In contrast to the statute at issue in Lindsey, California's monetary discovery sanctions statutes bear a reasonable relationship to valid state objectives of encouraging good faith discovery and discouraging frivolous motions practice.
The court's award of monetary sanctions denied DeWitt neither due process nor equal protection of the laws.
II.
DeWitt contends the court's initial use of a temporary judge on the discovery motion matter without first obtaining his consent and over his objection violated rule 2.816 and that such violation provides grounds for reversal of the challenged orders. Rule 2.816 provides in pertinent part: "Before the swearing in of the first witness at a small claims hearing, before the entry of a plea by the defendant at a traffic arraignment, or before the commencement of any other proceeding, the court must give notice to each party that: [¶] (1) A temporary judge will be hearing the matters for that calendar; [¶] (2) The temporary judge is a qualified member of the State Bar and the name of the temporary judge is provided; and [¶] (3) The party has a right to have the matter heard before a judge, commissioner, or referee of the court."
Rule 2.816 provides: "(a) Application. [¶] This rule governs a stipulation for a matter to be heard by a temporary judge when the court has appointed and assigned an attorney to serve as a temporary judge in that court. [¶] (b) Contents of notice. [¶] Before the swearing in of the first witness at a small claims hearing, before the entry of a plea by the defendant at a traffic arraignment, or before the commencement of any other proceeding, the court must give notice to each party that:
(1) A temporary judge will be hearing the matters for that calendar; [¶] (2) The temporary judge is a qualified member of the State Bar and the name of the temporary judge is provided; and [¶] (3) The party has a right to have the matter heard before a judge, commissioner, or referee of the court.
[¶] . . . [¶]
(d) Methods of stipulation. [¶] After notice has been given under (a) and (b), a party stipulates to a courtappointed temporary judge by either of the following:
(1) The party is deemed to have stipulated to the attorney serving as a temporary judge if the party fails to object to the matter being heard by the temporary judge before the temporary judge begins the proceeding; or [¶] (2) The party signs a written stipulation agreeing that the matter may be heard by the temporary judge. [¶] . . . [¶]
(4) If the application or motion for withdrawing the stipulation is based on grounds for the disqualification of, or limitation of the appearance by, the temporary judge first learned or arising after the temporary judge has made one or more rulings, but before the temporary judge has completed judicial action in the proceeding, the temporary judge, unless the disqualification or termination is waived, must disqualify himself or herself. But in the absence of good cause, the rulings the temporary judge has made up to that time must not be set aside by the judicial officer or temporary judge who replaces the temporary judge.
DeWitt contends, without supporting evidence or citations, that the trial court below "uses temporary judges . . . in discovery law [and] motion matters, without first obtaining the consent of litigants (preparing and publishing formal 'tentative rulings' on the motions) and who continue their participation—holding substantive hearings on the motions, and issuing formal substantive reports to the law [and] motion judge for the matter—even after a litigant has affirmatively withheld their consent to their participation in the matter."
It appears that the motion and opposition papers were provided to the temporary judge, who issued a tentative ruling granting the motion, in which he advised the parties that he had been assigned to serve as a temporary judge. That tentative ruling also stated: "Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. . . . If not all parties to the motion sign the stipulation, the Pro Tem Judge will hold a hearing on the motion and, based on the papers submitted by the parties and the hearing, issue a report in the nature of a recommendation to the Dept. 302 Judge, who will then decide the motion." DeWitt objected to the temporary judge hearing any part of the motion, including oral argument. At oral argument, he made a formal objection to the pro tem judge presiding and requested that the pro tem judge rule on his objection. The pro tem judge decided not to make any rulings at the oral argument and to have the judge of the department hear the entire motion, which was set for March 23, 2017. The pro tem judge prepared a memorandum to the department judge regarding the proceedings and reiterating his recommendations.
The pro tem judge recommended a monetary sanction conditioned on non-compliance with the order compelling further responses and less than one-fifth the amount ultimately awarded by the judge. --------
At the hearing on the discovery motion, the Honorable Harold Kahn granted the motion to compel further discovery responses and took the sanctions motion under submission. At the outset of the hearing, the court addressed DeWitt's procedural issue of the use of a temporary judge, which DeWitt contended was "unlawful" without his consent. The court overruled the objection, stating: "I'm going to overrule your objection on the basis of [rule] 2.816, and in any event, I did my own review here. I paid no attention to what the pro tem said. I'm already familiar with this case. I've already dealt with this on a previous motion, as you know, but I believe your [rule] 2.816 argument is mistaken."
DeWitt argues the court's statement was "designed to insulate the court's practice . . . from any effective appellate review . . . ." Such argument fails to cast doubt on the truth of the statement made on the record by the judge. Furthermore, the court's actions in seriously considering DeWitt's claim of asymmetry, in taking the sanctions matter under advisement, and in ultimately awarding sanctions approximately five times greater than that recommended by the pro tem judge, all support the court's statement that it was not influenced by the pro tem judge's tentative decision.
DeWitt does not explain precisely how the use of the pro tem judge in this case violated rule 2.816 or what provision of that rule was violated. The pro tem made no rulings in the case. Rather, as Bank asserts, the pro tem judge was used like a law clerk, making a non-binding analysis provided to the judge, who ignored the recommendations.
DISPOSITION
The orders are affirmed. The Bank is awarded its costs on this appeal.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.